Toms v. Judge of Recorder's Court , 237 Mich. 413 ( 1927 )

Section 14 of Act No. 344, Pub. Acts 1925, reads as follows:

"Any clerk, or deputy clerk of any municipal court of record in any city of the State may, in his own name as clerk or deputy clerk of such court, in any cause cognizable by such court and only when authorized by the court or any judge thereof by an order duly entered in said particular cause, administer to complainants the oath required thereof, attest the administering of said oath on any such complaint, sign and issue warrants based on any such complaints and administer oaths and take and accept sureties upon recognizances in any case where the penal amount thereof shall have been fixed by the court or any judge thereof upon the arraignment of any person upon a warrant or information."

In what is known as "the short book," kept by one of the deputy clerks of the recorder's court of the city of Detroit, appears the following:

"THE RECORDER'S COURT FOR THE CITY OF DETROIT MONDAY, THE 28TH DAY OF JUNE, 1926.

Present: HON.C.E. STEIN.

* * *

14568 Betty Washington. Accosting.

(A number of other numbers, names and charges appear therein.)

"Upon complaint made this day before Hon. Christopher Stein, a judge of the recorder's court of the city of Detroit, in each of the foregoing cases, that the several offenses therein charged have been committed within said city.

"It is now ordered by the court that Ralph E. Quinn, a deputy clerk of said court, administer to each complainant and to any witnesses produced by him the oath required by law in such cases. And thereupon the court examines the complainant in each of said cases, and the witnesses produced by him, and the complaint being reduced to writing, and subscribed by the complainant, and it appearing that said offenses have been committed, and that there is just cause to suspect the respective persons therein accused to have been guilty thereof;

"It is therefore ordered by the court that a warrant forthwith issue out of and under the seal of said court, in each of said foregoing cases based upon said complaints, and said Ralph E. Quinn, deputy clerk, is hereby authorized and directed to subscribe each of said warrants, in his own name as such deputy clerk."

This order was not signed by Judge Stein. Pursuant thereto, the deputy clerk administered the oath to the complaining witnesses, and as such deputy clerk signed a warrant for the arrest of Betty Washington on a charge of accosting, etc., in violation of the provisions of Act No. 231, Pub. Acts 1925. On trial on such charge before Judge Skillman, she was convicted. She claimed, and was granted, a new trial as a matter of right. At the opening of such trial before the defendant, her counsel moved to dismiss the proceeding, for the reason, among others, that the complaint was taken and the warrant issued by the deputy clerk, as before stated. Judge Jeffries was of the opinion that in the taking of the complaint and in the issuing of the warrant the deputy clerk was exercising judicial power, and that within the rule laid down in People v. Colleton,59 Mich. 573, his act in doing so was unwarranted, and entered an, order discharging the accused. The prosecuting attorney here asks mandamus to compel the judge to vacate and set aside this order, and to proceed with the trial of said cause.

The order of Judge Stein states that he examined the complainant and the witnesses produced by him, and that it appeared that the offense charged had been committed, and that there was just cause to suspect the person charged to have been guilty thereof. Having made this finding, we see no reason why the statute might not authorize the clerk to administer the formal oath and sign the warrant of arrest. The recorder's court is a court of record. The determination whether an offense has been committed, and whether there is probable cause to suspect the person charged to have been guilty thereof, is a judicial function, and cannot be performed by a ministerial officer. The signing of the complaint and warrant provided for in the statute is ministerial, and may be done by the clerk when ordered by the court after such determination has been had.

In the record before us, the order does not seem to have been signed, nor to have been entered in the court journal which is daily signed by the judge. This omission does not entitle the accused to a discharge. If the order was pronounced at the time it was made, it may now be signed nunc pro tunc as of that date. The purpose of doing so "is to perfect a record of judicial action taken and not to supply now some judicial action omitted." Freeman v. Wayne Probate Judge, 230 Mich. 455,460.

The writ may issue, if need be, conditional, however, on the prosecuting attorney's producing evidence to the defendant that said order has been signed nunc pro tunc as of the date when it was made. No costs are allowed.

BIRD, SNOW, STEERE, FELLOWS, WIEST, CLARK, and McDONALD, JJ., concurred.